Spray Ball Technical Data Special Spray Ball Installation Depth Test Stand/Drawing Quality Fairs

General Terms and Conditions – Date: 09/2011, Burkhard Vertriebs GmbH

A.  Precedency of these general terms and conditions

1. We provide services to our General Terms and Conditions only, as stipulated below, even when not expressly referred to in ongoing business relationships. Any amendments to these General Terms and Conditions, in particular the Customer's deviating Terms and Conditions, are hereby gainsaid. Lack of objection to deviating Terms and Conditions on our part may not be construed as agreement to them, even if we perform the service without reservation. The Customer declares agreement with the exclusive validity of our General Terms and Conditions when accepting our services.

B. Quotations and the conclusion of the contract

1. All quotations that are submitted by are non-binding and subject to change. This also applies information contained in catalogues and online sales documents. These are to be understood merely as a prompt for submitting a quotation.
2. Orders are deemed as accepted if they have either been  confirmed by us or carried out immediately following the receipt of the order. In this case, the delivery note and/or invoice act as a confirmation of the order.
3. We reserve property rights and copyrights over drafts, drawings and other documents. They may only be made available to third parties with our consent.
4. If, after the conclusion of the contract, we become aware of facts (particularly payment defaults regarding earlier suppliers to the buyer) which, according to the prudent judgement of a businessman leads us to conclude that the purchase price claim will be at risk by the buyer’s inability to pay, we reserve the right to set a reasonable period of time for the delivery of goods and services against incremental payment or the provision of appropriate securities. In the case of refusal, we are entitled to rescind from the contract, wherein any invoices for the partial delivery of products and services shall become due straight away.

C. Prices

1. All of the stated or indicated prices are net prices (in euro). Value added tax is added at the statutory rate.
2. Unless agreed otherwise all prices apply from our warehouse in Kaufbeuren. Costs that are incurred relating to packaging, transportation, transport insurance, customs duties and any other expenses shall be borne by the buyer.

D. Shipment

1. All transportation and packaging costs shall be at the buyer’s expense.
2. There shall be no redemption of packaging material.
3. Reusable packaging is only made available to the buyer on a loan basis. Jointly supplied Euro pallets and/or Euro lattice boxes are classed as reusable packaging. To the same extent, appropriate Euro packaging is to be passed to the shipping company and/or freight forwarding firm in a step by step fashion along with the delivered goods.

E. Delivery and Assumption of Risks

1. Delivery takes place through the provision of goods from our warehouse in Kaufbeuren. If shipping takes place at the buyer’s request, then this takes place at the buyers expense and at his risk.
The buyer also bears all risks if carriage paid deliver has been agreed.
2. At the latest, risk shall be transferred to the buyer once the goods are loaded, if partial delivery takes place or if the seller has taken on other services, e.g. shipping costs or delivery. If the shipping is delayed for reasons which the seller is not responsible for or if the buyer collects the goods, then the risk shall be passed to him from the day when the goods were ready for shipment.
3. The buyer has the choice over the mode of shipping. If the goods call for special transportation on account of their properties and condition, the seller is authorised to select the necessary shipment type without notifying the buyer about it. If the mode of shipment is not expressly determined by the buyer with the order, the seller shall decide the necessary mode of shipment.

F. Delivery date

1. Even if a delivery date has been agreed with the buyer, delivery information should only be seen as approximate and non-binding. This does not apply if the delivery date/time has been expressly agreed in writing as a non-negotiable date/time. The delivery period shall be deemed as adhered to if the object to be delivered has left our factory (or if we have notified the buyer of readiness for shipment) before the period expires.
2. The delivery period shall not start if has not met his obligations in the proper way, e.g. the supplying of technical data and documents, approvals including the agreed advance payment or the handing over of a payment bond.
3. We are entitled to make partial deliveries.
4. In the event of an application being filed for the opening of insolvency proceedings concerning the assets of the buyer, the tendering of a statutory declaration in lieu of an oath in accordance with Sect. 807 Code of Civil Procedure, any difficulties with payment that occur or the emergence of a significant deterioration in the buyer’s financial circumstances, we are entitled to stop deliveries straight away and refuse to fulfil current contracts if the buyer does not make the payment in return or provide adequate securities at our request. In the case of refusal, we are entitled to rescind from the contract, wherein any invoices for the partial delivery of products and services shall become due straight away.

G. The requirement of correct and punctual supply to ourselves, force majeure

1. In as far as we have carried out the necessary diligence of a congruent covering transaction and any incorrect or non-punctual delivery is not based on any fault of our own, our obligation to provide goods and services shall be subject to correct and punctual supply of goods and services in advance to ourselves. In this spirit, goods and services in advance applies to all subject matter related to the contract which is not made by ourselves.
2. Government action, insurgencies, strikes, lock outs, fire, machinery faults, bottlenecks in the supply of materials/energy, transport-related obstructions and other factors which are out of the sellers control and which delay the normal course of production or shipment shall be classed as “force majeure”. In the event of such events, we shall be entitled to delay the delivery date accordingly. If we learn about such events, we shall be obliged to inform the about such circumstances without delay. If delayed fulfilment of the goods and services due to the aforementioned circumstances is unacceptable for one of the parties, this party shall be entitled to withdraw from the contract. The same applies if, as a result of these circumstances, it cannot be foreseen when we will be able to fulfil the contract. The Customer may not claim for damages for such withdrawal. If we wish to make use of our right to withdrawal we must immediately communicate this to the Customer after assessing the consequences of the events, even if an extension to the performance deadline and/or a postponement of the performance date were previously agreed upon with the Customer.
3. If the buyer incurs damages as a result of delay which is attributable to us, the Customer is entitled to claim for damages. The damages are limited to 0.75% for each commenced week of delay, but a maximum of 7.5% of the job value. This does not affect our liability as described in Section L of these General Terms and Conditions.

H. Payment conditions, payment default

1. Invoices are to be settled upon receipt without deductions, and in a manner which does not cause us additional expense. If, at the buyers request, parts are not collected and/or shipped after completion, but at a later date, we shall be entitled to issue invoices on the date when the goods and services were provided, the goods are ready for collection and/or the collection/shipment could have taken place.
2. In the case of payment default, all further deliveries – including the cancellation of arrears – are only made against cash on delivery or cash payments. In the case of payment default on the part of the buyer, we are entitled to charge default interest of at least 12%. Any discounts that have been agreed will not be honoured if the buyer is in default with the payment of earlier deliveries.

I.  Prohibition relating to clearing, offsetting and retention

1. In contrast to the purpose that the buyer intends, we are entitled to initially clear any payments that are made against costs, default interest  that has been accrued and then, against older receivables which still have not been settled. In this case, the buyer will receive a written in-voice.
2. The buyer is only permitted to offset, and if he is a merchant, retain goods and services or reduce an invoice, if the counter claims are established in law and indisputable.

J. The requirement to examine the goods and make a complaint in respect of a defect

1. The buyer shall examine the received goods without delay in order to check the quantity and characteristics. In so doing, a complaint must be made in respect of apparent defects without delay by notifying the seller in writing. Defects that only become apparent later should be notified in writing to the seller without delay once they have been discovered.
If the requirement to examine the goods and make a complaint in respect of a defect is infringed, then the goods are seen as approved on the basis of the relevant defect.
2. Transportation damage is not classed as a defect. With respect to this, liability is governed by the transporter’s provisions.

K. Warranty

1. No warranty shall be provided for a particular purpose or suitability unless it is expressly agreed in writing; for the rest, risks pertaining to suitability and use rest exclusively with the buyer. No other warranties are provided other than an expressly agreed choice in respect to the purpose of the goods/services and other properties/conditions relating to the delivery and goods/services.
2. No warranties are provided in the information concerning the properties/condition and possible applications of our products (especially not in accordance with sects. 443, 444, 639 German Civil Code) unless this is explicitly specified as such.
3. The warranty claims of the buyer fall under the statute of limitations in one year.
4. We may decline remedy as long as the Customer obligations have not been met. This does not affect any right to retainment due to defects up to twice the cost of remedying the defect.

L.  G. Liability

1. We are liable for damage claims of all kinds, especially those relating to fault in the execution of the contract, breach of duty and liability in tort (sect. 823 et seq. German Civil Code) where we, our employees or agents impose intent or gross negligence.
2. We are also liable for slight negligence in the case of damage resulting from death, physical harm and damage to health as well as with regard to guarantees and breaches contractual obligations. In the case of a breach of contractual obligations, our liability is limited to the foreseeable damage relating to the nature of goods, damage that is typical for the contract and average direct damage. The foregoing provision shall also apply to breaches of duty committed by our employees and agents.
3. With respect to violations of property rights, we are liable in accordance with the provisions stated above if, and to the extent that, the contractual use of our goods violate the property rights that are applicable in the Federal Republic of Germany and published at the time our delivery is made. This does not apply if we have manufactured the deliverables in accordance with the buyer’s drawings, models or other descriptions/specifications that have been handed over by the buyer and we do not know or we ought to know that property rights are violated as a result. In this case, the buyer is liable for violations of property rights that are arising have already arisen. He is obliged to immediately notify us of possible and alleged violations of property rights that are known to him, and indemnify us against third party claims and all related costs and expenses.
4. There shall be no claims for a reduction to (and the exercising of) a right of withdrawal if the claim for subsequent performance falls under the statute of limitations.
5. Our liability in accordance with the provisions of the Product Liability Act and sects. 478, 479 German Civil Code (Limitation of recourse claims with respect to the last seller) remains unaffected.
6. For the rest, our liability is excluded.

M. Securities      

1. We shall retain ownership of all goods supplied by us until all existing receivables (incl. conditional receivables) and secondary claims which we have in relation to the buyer from our business relations are fulfilled; In connection with this, all deliveries are classed as one connected delivery transaction. In the case of a continuous invoice, the retained ownership shall serve as collateral for our balance claim. The aforementioned provisions shall also apply to re-ceivables  that may arise in the future.
2. The buyer is entitled to resell, process or mix the goods in the ordinary course of business; In so doing however, he appears surrenders all receivables arising from the reselling, processing, mixing or other legal foundations related to the purchased item (especially those from insurance contracts or liability in tort) amounting to the final invoice agreed with us (incl. VAT). The sale shall be the equivalent of use for the performance of contracts for work and services or contracts for work and materials by the buyer.
3. The retention of title extends to the full value of the manufactured products that are produced as a result of processing, mixing or combining our goods, wherein these processes take place for us, so that we are considered as the manufacturer. If third parties retain property rights in the event of processing, mixing or combining our goods with the goods of third parties, we shall acquire co-ownership in proportion to the objective value of these goods. If our property rights are terminated as a result of the combining or mixing, the buyer shall assign us the accrued property rights and/or expectant rights to the new item or object to the extent of the invoice value of the goods delivered by us and keep them safe for us without charge.
4. As long as we have not revoked this authorisation, the buyer is authorised to collect receivables from the sale despite the assignment. We ourselves shall not collect the receivables as long as the buyer meets his payment obligations to us in due course. The buyer obliged to inform us of the debtor of the assigned receivables at our first written request as well as to notify the debtor of the assignment.
5. We are entitled to revoke the authority of the buyer to resell (within the scope of point 2) and to collect the receivables assigned to us with immediate effect, if the buyer defaults with his payments to us, is in financial difficulty due to a significant deterioration in its financial situation or does not properly meet his contractual obligations towards us. If insolvency proceedings are applied for over the assets of the buyer, any payment is stopped, an affidavit is issued in accordance with sect. 807 Code of Civil Procedure or a change in the ownership of the buyer’s company occurs in connection with payment difficulties, the authority to resell and collect the receivables assigned to us shall be terminated automatically.
6. The buyer shall look after our (jointly) owned property with the diligence of a prudent businessman without charge, and insure it against fire, burglary, theft and other usual risks.
7. The buyer is prohibited from pledging or transferring ownership of the goods that have been delivered under retention of title. The buyer shall, without delay, notify us of any pledging or other infringement of our property rights by a third party and confirm the ownership right to us and the third party in writing. Any costs that remain for us out of this, despite a win in a legal dispute, shall be borne by the appointed party.
8. In the case of a breach of contract, especially payment default, we are entitled to recover the goods; The buyer hereby agrees to a recovery in such a case. With the recovery of goods, withdrawal from the contract shall only take place if this is explicitly stated by us. All costs incurred by us in the recovery of goods (especially transport costs) shall be borne by the buyer. The buyer can only demand the delivery of goods that have been recovered without an express declaration of withdrawal after full payment of the purchase price and all costs.
9. In this respect, the securities due to us will not be seized as the value of our collateral exceeds the nominal value of the receivables to be secured by 20%.

N. Place of Performance, Place of Jurisdiction and Governing Law

1. The exclusive place of performance for both parties to the agreement is our company headquarters in 87600 Kaufbeuren, Germany. Inasmuch as our Customers are merchants, legal persons under public law or special assets of the Federal Government of Germany, or have no general place of jurisdiction within the Federal Republic of Germany, the courts of law at our company headquarters in 87600 Kaufbeuren are deemed responsible. However, we are also entitled to make claims in any other jurisdiction.
2. Legal relations with the Customer are subject exclusively to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) and other bilateral and multilateral agreements serving to unify international sales law shall not apply.

O. Burden of Proof, Amendments, Invalidity Clause

1. Existing burden of proof regulations in favour of the Customer are not affected by these General Terms and Conditions.
2. Amendments to these General Terms and Conditions or other contractual arrangements must be made in writing.
3. If individual provisions of these General Terms and Conditions are ineffective by law or individual agreement, the effectiveness.

P. The storage of data

The buyer hereby consents to the fact that we store personal and company data associated with the settlement of the transactions.

Burkhard Vertriebs GmbH | Julius-Probst-Straße 7 | D-87600 Kaufbeuren | Fon: +49 8341 908489-89 | Fax: +49 8341 908489-90 | info@spruehkopf.com